Citation Nr: 0115929
Decision Date: 06/11/01 Archive Date: 06/18/01
DOCKET NO. 00-16 631 ) DATE
)
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On appeal from the
Department of Veterans Affairs Regional Office in Buffalo,
New York
THE ISSUE
Entitlement to an initial rating in excess of 0 percent for
residuals of flash burns of the hands and face.
REPRESENTATION
Appellant represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
M. Ferrandino, Associate Counsel
INTRODUCTION
The veteran had active service from June 1943 to April 1946.
This appeal arises from the February 2000 rating decision
from the Buffalo, New York Regional Office (RO) that granted
the veteran's claim for service connection for residuals of
flash burns of the hands and face and assigned a 0 percent
evaluation under 38 C.F.R. § 4.118, Diagnostic Code 7899-
7802. A Notice of Disagreement was filed in May 2000. While
the veteran had previously requested a hearing before the
Board in connection with his claim for service connection,
and he had already been afforded an RO in October 1999
regarding such claim, in May 2000 correspondence, he
indicated that he no longer wanted to be scheduled for any
further hearings. A Statement of the Case was issued in June
2000, and in his substantive appeal, filed in July 2000, he
requested no hearing.
REMAND
During the pendency of this appeal, a significant change in
the law was effectuated. Specifically, on November 9, 2000,
the President of the United States signed into law the
Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No.
106-475, 114 Stat. 2096 (2000). Among other things, this law
redefined and expanded the obligations of VA with respect to
the duty to assist. This change in the law is applicable to
all claims filed on or after the date of enactment of the
Veterans Claims Assistance Act of 2000, or filed before the
date of enactment and not yet final as of that date.
Veterans Claims Assistance Act of 2000, Pub. L. No. 106-475,
§ 7, subpart (a), 114 Stat. 2096, 2099-2100 (2000). See also
Karnas v. Derwinski, 1 Vet. App. 308 (1991).
Based on this legislative change, the RO has not been
afforded the opportunity of undertaking those actions
necessary to ensure compliance with the notice and duty-to-
assist provisions contained in the new law with respect to
the matter on appeal. The end result is that the veteran has
not been informed of the VCAA provisions that may have
applicability to the issue herein presented, and he therefore
may have been denied the opportunity to formulate appropriate
argument on appeal to the Board. It thus would be
potentially prejudicial to the veteran were the Board to
proceed to issue a merits-based decision at this time. See
Bernard v. Brown, 4 Vet. App. 384 (1993); VA O.G.C. Prec. Op.
No. 16-92 (July 24, 1992) (published at 57 Fed. Reg. 49,747
(1992)).
Moreover, the issue of the rating to be assigned initially
for the veteran's burns is one governed by the holding of the
United States Court of Appeals for Veterans Claim (Court) in
Fenderson v. West, 12 Vet. App. 119 (1999) (at the time of an
initial rating, separate or "staged" ratings may be
assigned for separate periods of time based on the facts
found.) The record does not reflect that Fenderson was
considered by the RO in its adjudication of the veteran's
claim for an initial rating in excess of 0 percent for his
burns, thereby warranting further action by the RO.
Additional evidentiary development is likewise in order
considering only the record now before the Board. In this
case, the record is inadequate to fully evaluate the veteran
as it is noted that there are of record two statements from
Samuel K. Gooldy, M.D., regarding treatment of the veteran,
but his treatment records of the veteran have not been
obtained. As treatment records of the veteran have been
identified, there is a duty to obtain these records.
Pursuant to the VCAA, the duty to assist requires that the RO
obtain relevant records, including private treatment records,
as identified by the veteran and authorized by him to obtain.
If the records are unable to be obtained, the RO shall notify
the veteran, identify the records they are unable to obtain,
briefly explain the efforts made to obtain those records, and
describe any further action to be taken with respect to the
claim.
Additionally, in this case, in reviewing the evidence in the
claims folder, it is noted that the veteran's representative
finds that the most recent VA examination, which was
conducted in November 1999, was inadequate, based on the RO's
failure to request that the veteran's claims folder be made
available to the examiner. Further, the undersigned notes
that VA examinations performed in July 1997 and November 1999
are inadequate for rating purposes in that the complete
symptomatology of the veteran's service-connected burns were
not described in the accompanying reports. Findings as to
measurements of the affected areas, the degree of resulting
deformity or disfigurement, and degree of associated
limitation of function, are notably absent.
The veteran has specifically described a limitation of
function related to the scars of the hands, including pain,
swelling, and tingling and burning sensations of hands and
fingers. See 38 C.F.R. § 4.118, Diagnostic Code 7805 (2000).
Therefore, efforts to schedule the veteran for orthopedic and
neurological examinations are needed to evaluate any such
symptomatology related to the service-connected burns. In
particular, the orthopedic examination should address the
requirements of DeLuca v. Brown, 8 Vet. App. 202 (1995) to
the extent that they apply to any musculoskeletal limitation.
In DeLuca, the Court held that in evaluating a
musculoskeletal disability, functional loss due to pain under
38 C.F.R. § 4.40 and functional loss due to weakness,
fatigability, incoordination or pain on movement under 38
C.F.R. § 4.45 must be addressed.
As further examination is deemed advisable, the veteran is
hereby advised of the importance of appearing for such an
evaluation. In that vein, the veteran's attention is
directed to the following:
Sec. 3.655 Failure to Report for
Department of Veterans Affairs
Examination.
(a) General. When entitlement or
continued entitlement to a benefit cannot
be established or confirmed without a
current VA examination or reexamination
and a claimant, without good cause, fails
to report for such examination, or
reexamination, action shall be taken in
accordance with paragraph (b) or (c) of
this section as appropriate. Examples of
good cause include, but are not limited
to, the illness or hospitalization of the
claimant, death of an immediate family
member, etc. For purposes of this
section, the terms examination and
reexamination include periods of hospital
observation when required by VA.
(b) Original or reopened claim, or
claim for increase. When a claimant
fails to report for an examination
scheduled in conjunction with an original
compensation claim, the claim shall be
rated based on the evidence of record.
When the examination was scheduled in
conjunction with any other original
claim, a reopened claim for a benefit
which was previously disallowed, or a
claim for increase, the claim shall be
denied.
38 C.F.R. § 3.655 (2000).
On the basis of the foregoing, this matter is REMANDED to the
RO for the following actions:
1. The RO must review the claims file and
ensure that all notification and
development actions required by the VCAA
are completed. In particular, the RO
should ensure that the new notification
requirements and development procedures
contained in sections 3 and 4 of the Act
(to be codified as amended at 38 U.S.C.
§§ 5102, 5103, 5103A, and 5107) are fully
complied with and satisfied. For further
guidance on the processing of this case in
light of the changes in the law, the RO
should refer to any final regulations
which may be issued and General Counsel
precedent opinions. Any binding and
pertinent court decisions that are issued
also should be considered.
2. The RO should contact the veteran in
writing for the purpose of advising him
of the evidence needed to substantiate
his claim for an initial rating in excess
of 0 percent for burns of the face and
hands. The RO should further inform the
veteran in writing of his right to submit
any additional argument and/or evidence
in support of such claim. Such evidence
may be of a lay or medical variety,
including statements from medical
professionals, friends or family members,
or his employer or co-workers. Such
evidence should be relevant to the
question of the level of severity of the
service-connected disability at issue
from March 1997 to the present.
3. In addition, the veteran should be
contacted by the RO for the specific
purpose of requesting that he provide a
listing of the names and addresses of
those VA and non-VA medical professionals
or institutions who have evaluated and/or
treated him for the flash burns of his
face and hands during the period from
March 1997 to the present. The
approximate dates of any such evaluation
or treatment should be furnished by him
to the extent feasible.
Thereafter, the RO should, after
obtaining proper authorization, obtain
those treatment records not already on
file from those medical professionals or
institutions referenced in connection
with the aforementioned request. Special
efforts should be made to obtain copies
of complete clinical records from Samuel
K. Gooldy, M.D., for inclusion in the
claims folder. Any and all VA treatment
records not already on file must be
obtained regardless of whether in fact
the veteran responds to the foregoing
request. Such records, once obtained,
must then be added to the claims folder.
4. Thereafter, the veteran is to be
afforded a VA dermatological, orthopedic,
and neurological examinations for the
purpose of determining the nature and
severity of his service-connected flash
burns of the face and hands. The
veteran's claims folder in its entirety,
to include a copy of this remand, is to
be furnished to the examiners prior to
any evaluation of the veteran for use in
the study of this case. Such
examinations are to include a review of
the veteran's history and current
complaints, as well as a comprehensive
clinical evaluations. Any and all
indicated diagnostic testing must also be
accomplished if deemed warranted by any
examiner. All applicable diagnoses must
be fully set forth. While a percentage
rating must not be assigned by the
examiners, each must address each and
every factor enumerated in the paragraphs
which follow as to the rating of the
burns of the face and hands. This is to
ensure that the decision to assign a
particular rating may be fully justified,
both to the veteran and to any reviewing
authority. Such examiners should also
offer an opinion as to whether varying
levels of severity of the veteran's burns
of the face and hands are demonstrated
from March 1997 to the present, and, if
so, the specific periods and the level of
severity shown should be fully
delineated.
The dermatological examiner
should describe the findings
related to the service-
connected residuals of flash
burns of the hands and face,
specifically noting the area(s)
involved in terms of measured
square inches, and whether any
scars are painful and tender on
objective demonstration or
poorly nourished with repeated
ulceration. Also, the degree
of resulting disfigurement, be
it slight, moderate, severe, or
complete, should be set forth,
as well as whether there is a
marked and unsightly deformity
of the eyelids, lips, or
auricles, or an exceptionally
repugnant deformity of one side
of the face or marked or
repugnant bilateral
disfigurement. The factors
upon which any medical opinion
is based should be set forth
for the record.
The orthopedic examiner should
be asked to comment on the
limitation of function, if any,
caused by the residuals of the
flash burns of the face and
hands, particularly of the
hands. Functional limitations
should be described with as
much specificity as possible.
In particular, all ranges of
motion of the hands should be
indicated as well as normal
ranges of motion.
The orthopedist should also
determine whether there is
objective evidence of pain,
painful motion, weakened
movement, excess fatigability,
or incoordination on movement,
and whether there is likely to
be additional range of motion
loss of the hands due to any of
the following: (1) Pain on
use, including flare ups; (2)
weakened movement; (3) excess
fatigability; or (4)
incoordination. The above
determinations must, if
feasible, be expressed in terms
of the degree of additional
range of motion loss due to
pain on use or during flare ups
under § 4.45. If the examiner
is unable to make such a
determination, it should be so
indicated on the record. The
factors upon which any medical
opinion is based should be set
forth for the record.
The neurological examiner
should determine whether the
veteran has any neurological
manifestations referable to the
service-connected residuals of
flash burns of the face and
hands. If so, all such
manifestations should be
described in detail. All
factors upon which any medical
opinion is based must be set
forth for the record.
5. Following the completion of the
foregoing actions, the RO should review
the examination reports. If any report
is not in complete compliance with the
instructions provided above, appropriate
action should be taken to return such
examination for any and all needed
action.
6. The RO should thereafter readjudicate
the veteran's claim for an initial rating
in excess of 0 percent for scars of the
face and hands, with consideration, where
appropriate, to 38 C.F.R. §§ 4.40 and
4.45, the provisions of DeLuca and
VAOPGCPREC 36-97 (Dec. 12, 1997), and
38 C.F.R. § 3.655. Consideration should
also be given as to whether a separate
rating may be assigned for any
neurological aspects of the service-
connected disability. The RO should also
consider Note 2 of 38 C.F.R. § 4.118,
Diagnostic Code 7801, regarding assigning
separate evaluations for the face and
each of the hands. Consideration should
also be given to the case of Fenderson,
supra. If the veteran fails to appear
for a scheduled examination, the RO
should include verification in the claims
file as to the date the examination was
scheduled and the address to which
notification was sent. In the event that
the action taken remains adverse to the
veteran, he and his representative should
be provided a supplemental statement of
the case and then afforded an opportunity
to respond.
The veteran need take no action until otherwise notified.
The purpose of this remand is to obtain additional
evidentiary and procedural development. No inference should
be drawn regarding the final disposition of the claim in
question as a result of this action.
The law requires full compliance with all orders in this
remand. See Stegall v. West, 11 Vet. App. 268 (1998).
Moreover, this claim must be afforded expeditious treatment
by the RO. The law requires that all claims that are
remanded by the Board or the Court for additional development
or other appropriate action must be handled in an expeditious
manner. See The Veterans' Benefits Improvements Act of 1994,
Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38
U.S.C.A. § 5101 (West Supp. 1999) (Historical and Statutory
Notes). In addition, VBA's Adjudication Procedure Manual,
M21-1, Part IV, directs the ROs to provide expeditious
handling of all cases that have been remanded by the Board
and the
Court. See M21-1, Part IV, paras. 8.44- 8.45 and 38.02-
38.03.
Brian J. Milmoe
Acting Member, Board of Veterans'
Appeals
Under 38 U.S.C.A. § 7252 (West 1991 & Supp. 2000), only a
decision of the Board of Veterans' Appeals is appealable to
the United States Court of Appeals for Veterans Claims. This
remand is in the nature of a preliminary order and does not
constitute a decision of the Board on the merits of your
appeal. 38 C.F.R. § 20.1100(b) (2000).